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Morality versus the law: Rizieq Shihab on the defensive
Indonesia at Melbourne - June 1, 2017
The case began in January, when a group called the Alliance of Anti-Pornography Students reported to police a website that published photos and screen shots of salacious WhatsApp conversations between two people, alleged to be Rizieq and Firza Husein. It all quickly went viral.
Firza was a known supporter of Rizieq, who led the protests against Basuki "Ahok" Tjahaja Purnama in late 2016 and early 2017. Police named Firza a suspect on 17 May and she is likely to be charged under one or all of Articles 4(1), 6 and 8 of Law No. 44 of 2008 on Pornography. She is now in police custody.
Rizieq was initially only called for questioning as a witness but police said on Monday that they had enough evidence to upgrade his status to suspect, loosely equivalent to being charged in common law countries. Rizieq has twice ignored police summonses, in April and May, and has fled to Saudi Arabia. One of his lawyers had said that he might stay there until President Joko (Jokowi) Widodo was no longer in power, although on Wednesday said he would come home "in the near future". According to another of his lawyers, Rizieq has also met with a UN representative, seeking protection, but it is hard to imagine on what basis.
It is not yet known who uploaded the material to the internet but the conversations first appeared after Firza's phone was confiscated by police, when she was arrested for her alleged involvement in a plot to overthrow the government at the time of the 2 December anti-Ahok demonstration. This raises the question whether the contents were leaked by a member of the police.
If the allegations prove to be true, they could be embarrassing – not just for Rizieq, but also for the FPI, which very actively campaigned for the introduction of the Pornography Law. FPI also demonstrated outside the court during the trials of Playboy editor Erwin Arnada, Nazril Irham (Ariel Peterpan) and his editor, Reza Rizaldi (Rejoy), all of whom were imprisoned on pornography charges, the first under the Criminal Code and the second two under the Pornography Law.
Morality and embarrassment are one question but, if proven true, is there a case for Rizieq to answer legally? There was little proper legal justification for the imprisonment of Erwin, Ariel and Rejoy. The Indonesian Playboy displayed no nudes; and neither Ariel nor Rejoy personally uploaded Arial's sex tapes onto the internet.
While many of FPI's opponents would take immense pleasure in seeing Rizieq behind bars, it would not assist justice to apply the same faulty logic to Rizieq.
The charges
It is hard to know what legitimate case could be brought against Rizieq. Article 4 of the Pornography Law, for example, prohibits production of pornographic material but only for distribution (commercially or non-commercially), personal use is not an offence. Article 10 of the law also prohibits public (but not private) nudity. It is, however, clearly an offence to upload pornographic material onto the internet. Thus, whoever uploaded the chat onto the internet violated the law. The participants didn't.
Law No. 11 of 2008 on Electronic Information and Transactions is, however, more ambiguous. Article 27 states that it is forbidden to "knowingly and without authority distribute and/or transmit and/or cause electronic information to be accessible and/or electronic records that violate morality (melanggar kesusilaan)".
Unlike the Pornography Law, the Electronic Information and Transactions Law does not make a clear distinction between public and private. Technically, it might be possible to state that the discussion was "transmitted" through WhatsApp, despite the fact that such chats are private conversations.
The legal definition of "violating morality" is also unclear. Whose morality should judges use as the standard in a multi-ethnic, multi-religious country like Indonesia?
According to Article 284 of the Criminal Code it is an offense to have extra-marital affairs in Indonesia but a person can only be prosecuted at the request of the spouse and it must be accompanied by a request for divorce. The conversation through WhatsApp, even if true, is insufficient evidence of sexual contact. Further, Rizieq's wife has stood by him and Firza is a divorcee.
Both Rizieq and Firza deny that they are the people pictured. Even if it is proven that they engaged in online "sex talk", it is difficult to see how this private, consensual activity between two adults could be against the Pornography Law. If anyone should be charged, it is whoever uploaded the images and conversation. But the cases of Ariel and Rejoy do not inspire any confidence that the law will be applied accurately or consistently.
Ariel and Rejoy were imprisoned more because of a feeling of moral outrage and because the courts seemed afraid to go against the hardliners. In Rizieq's case, the Electronic Information and Transactions Law, with its woolly "morality" article, could prove useful if the judges wish to convict the pair. Nevertheless, as Mudzakir, a criminal law expert from the Islamic University of Indonesia (UII) put it, you can't become a suspect because you make private pornographic content. "If that were the case, then almost everyone who owns a mobile phone would be a suspect."
Regardless of what happens in the pornography case, Rizieq and Firza face other unrelated charges that could also land them in prison. Rizieq may be charged for insulting Christianity; insulting the national ideology, Pancasila and alleging that the new Indonesian banknote contains communist symbols. Firza is also facing charges of treason.
[Helen Pausacker is the deputy director of the Centre for Indonesian Law, Islam and Society and an editor of the Australian Journal of Asian Law. She received her PhD from the Melbourne Law School in 2013.]
Source: http://indonesiaatmelbourne.unimelb.edu.au/morality-versus-the-law-rizieq-shihab-on-the-defensive/.
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